One News– interview with Chief Ombudsman about tax-payer funded sex-change operation where health bureaucracy acted unfairly – incorrect impression portrayed of Ombudsman’s decision, contrary to agreement before interview – field tape sought to assist preparation of complaint – Broadcasting Act s.12
Order: Order made to release field tape to complainant
This headnote does not form part of the decision.
An item on One News on 23 November 2000 reported on the case of Joanne Procter who was seeking a taxpayer-funded sex change operation. Her application had been approved by doctors at Waikato Hospital, but that decision had been overruled by the Health Funding Authority. She had taken her case to the Ombudsman, and the Chief Ombudsman had ruled that she had been treated unfairly by the health bureaucracy. A brief comment from the Chief Ombudsman was included in the item. He said:
The decision I took was one solely relating to her situation and is not a precedent for the future.
Sir Brian Elwood, the Chief Ombudsman, wrote to Television New Zealand Ltd about the item. He advised that when approached by TVNZ for an interview he had expressed concern about the manner that the investigation had been portrayed by some parts of the media. He said that he had agreed to be interviewed following TVNZ’s assurance that it would correct the record.
However, he wrote, none of the material to correct the record had appeared in the item. Rather, he continued, the incorrect impressions created in other media had been reinforced by the use of the terms “landmark recommendation” and “unusual recommendation” for “a man to be given a sex change at public cost”.
Sir Brian wrote:
If you review the tape of my interview you will see the emphasis I placed on the recommendation being neither a “landmark” or “unusual” one. The issue was not the type of operation involved but the administrative conduct of a Health Authority which on the basis of medical justification had approved an operation under then current policy, but later cancelled the operation because of a change in policy. Subsequently the individual concerned was subjected to a period of nearly 2 years of bureaucratic delay in addressing the administrative issues involved. Regrettably the media focus has been upon the type of operation, gender reassignment surgery, and not upon the administrative conduct of the Health Authority.
In conclusion, he asked for a copy of a tape of the interview.
In its response to the Chief Ombudsman, TVNZ advised that its policy was not to release “field tapes”, adding:
They are regarded by our editorial management as being akin to the notebooks of newspaper reporters.
The Chief Ombudsman then asked the Authority to exercise its power under s.4C of the Commissions of Inquiry Act 1908 to order TVNZ to make the tape available.
Section 12 of the Broadcasting Act 1989 allows the Authority to use certain provisions in the Commissions of Inquiry Act. The release of the field tape to the Authority was addressed in Interlocutory Decision ID 2001-001 (12 March 2001) in which the Authority determined:
Pursuant to the provision in s.12 of the Act, the Authority directs TVNZ to make available to it the field tape of the interview with the Chief Ombudsman given on 23 November 2000. Further, the Authority now invites TVNZ to make submissions as to whether the material should be released to the Chief Ombudsman and if so, on what terms. The material and the submissions are to be lodged with the Authority by 28 March 2001.
When supplying the tape in compliance with the order, TVNZ argued that it should not be released to the complainant. It summarised its case in the following way:
Whether or not the tape should be disclosed in this instance requires a balancing
between Section 14 [of the New Zealand Bill Of Rights Act 1990 relating to the
freedom of expression] and the interests of justice. The interests of justice will
only prevail where the publication of the material will seriously prejudice the
conduct of the hearing. This is not the situation in the present case. The
Ombudsman was present at the interview and will not be unduly prejudiced.
There are no third parties and the tape is available to members of the Authority.
TVNZ also argued that supplying the tape would set a precedent whereby every individual who was unhappy at their portrayal by the media could obtain a copy of the interview. If tapes were available in these circumstances, TVNZ contended, it would have a chilling effect on its investigative activities.
In response, the Chief Ombudsman cited TVNZ v The Queen  NZCA 354, and TVNZ v Ombudsman  1 NZLR 106, and concluded;
In light of the provisions of the OIA [Official Information Act]and the two decisions referred to above, which TVNZ has neither adverted to nor sought to distinguish, my view is that TVNZ has no legal justification for having declined my request for the tape. Accordingly, it would be proper and appropriate for the Authority to exercise its discretion under the Commissions of Inquiry Act to require the tape to be made available to me for the purposes of this complaint.
TVNZ replied to this submission, and after discussing the issues, it wrote:
Any decision by the Authority under Section 12 of the Broadcasting Act and Section 4(c) of the Commissions of Inquiry Act, requiring the production of the tape to the Ombudsman, would seriously impact on the interests of the broadcaster in freedom of expression and the "chill effect" on the gathering and dissemination of news. The Official Information Act does not govern or help in the present application which deals only with a complaint against broadcasting standards where Section 14 of the New Zealand Bill of Rights must prevail, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Pulling back from the legal argument, we add the observation that the Chief Ombudsman's complaint essentially has to do with whether or not he was treated unfairly in the broadcast (standard G4 of the Codes of Broadcasting Practice). We fail to see how, even if the tape was provided, the Chief Ombudsman could make a case for having been treated unfairly. The issue from his point of view seems to be one that could be resolved only by comparing what is purported to have been said in a telephone conversation with what was broadcast in the item. In that context the field tape is irrelevant.
The Authority has given careful consideration to the arguments advanced by the parties. It acknowledges the broadcaster’s submission that reporters consider that field tapes have the status of a “reporter’s notebook” However, having exercised its discretion to obtain the material, the Authority concludes that the weight of the legal arguments requires that the material be released to the complainant because it considers that there are no compelling reasons to the contrary.
Having viewed the field tape, the Authority exercises its discretion to make the following order:
Pursuant to s.12 of the Broadcasting Act 1989 and section 4C(3) of the Commissions of Inquiry Act 1908, the Authority supplies to the Chief Ombudsman a copy of the field tape which was made available to the Authority by Television New Zealand Limited in compliance with the order in Decision No: ID2001-001.
The field tape is supplied to the Chief Ombudsman to assist him in making a final submission on the complaint about the broadcast of an item on One News on 23 November 2000. The Authority requires the final submission and the return of the field tape by Thursday 16 August 2001.
Signed for and on behalf of the Authority
2 August 2001